legal issues

Indigenous law programs

Sharon
Scully
Law and Bills Digests Section

The Government has announced funding of $17.7 million in 2008
2009 to continue night patrol services in the Indigenous
communities identified by the Northern Territory Emergency Response
(NTER).[1] This is in
addition to the $3.9 million that the Attorney-General s Department
has already committed to night patrols services since the 2007 2008
Budget.[2]

It should be noted that prior to the Government s announcement
of the NTER on 21 June 2007[3], the Attorney-General s Department had been funding
night patrol services for several Indigenous communities and town
camps in the Northern Territory since 2004 2005. [4]

The amount allocated to night patrols services in this year s
Budget is an increase from the 2007 2008 Budget estimates for the
Attorney-General s Department, where approximately $13.3 million
was committed to the Department s prevention, diversion,
rehabilitation and restorative justice services for Indigenous
Australians, of which night patrols were a part.[5]

The NTER involves several
government departments and its aims include protecting children
from abuse and ensuring the safety of families in remote
communities. Night patrol services aim to break the cycle of
violence by measures such as:[6]

moving a person from a situation of risk to a safe place

diffusing situations involving violence, and

providing advice, information and referral to other services,
such as counselling.

Expenses for the program are provided for 2007 08 and 2008 09
only, with future funding subject to consideration in the 2009 10
Budget (following an evaluation of the Northern Territory Emergency
Response).[7]

For further information regarding budget measures relating to
the Indigenous community, please refer to Indigenous Affairs by
John Gardiner-Garden in the Social Policy section of the Budget
Review 2008 09.

Public Order and Safety: Legal Aid

Diane
Spooner
Law and Bills Digests Section

Allocation of legal aid payments to the States and Territories
falls within payments for specific purposes in National Partnership
payments . As part of the Commonwealth s support for public order
and safety services, the following existing payments will continue
to be paid from 1 January 2009 as part of the National Partnership
payments:

$159.4 million in 2008 09, to the States legal
aid commissions for the provision of legal assistance in
Commonwealth matters.[8]

For the 2008 09 Budget year, New South Wales, Victoria and
Queensland are included in the National Partnership payments with
the other States and Territories. Prior to this, payments towards
legal aid for these three States were classified as Australian
Government own-purpose expenses.[9]

Expenses for the overall public order and safety function
comprise support for the administration of the federal legal system
and the provision of legal services, which includes legal aid to
the community. The expenses also include law enforcement and
intelligence activities, in addition to the protection of
Government property.[10] The total amount allocated for public order and safety
increases from $3,788 million in 2007 08 to $3,807 million in 2008
09.[11]

The Government will also provide $11.0 million over three years
from 2007 08 to 2009 10 for the Expensive Commonwealth Criminal
Cases Fund.[12]
This will allow the state-based legal aid commissions to meet trial
costs in relation to national security trials running in Victoria
and New South Wales, without loss to their usual allocation of
funding for their other legal aid functions and services.

As part of the Closing the Gap measures set out in the Budget,
the Attorney-General s Department has been allocated $2.0 million
in 2008 09 to continue funding for additional legal aid services in
support of the Northern Territory Emergency Response. On-going
funding needs in this area will be reviewed before the next
Budget.[13]

Funding for the Natural Disaster Mitigation Program

Sharon
Scully
Law and Bills Digests Section

The Government has announced funding of $19.2 million in 2008
2009 to continue the Natural Disaster Mitigation Program (the
NDMP).[14]

Under the previous Government, the NDMP was funded by what had
then been the Department of Transport and Regional Services
(renamed the Department of Infrastructure, Transport, Regional
Development and Local Government).[15]

The NDMP is a national program, which aims to identify and deal
with natural disaster risk priorities.[16] Funds are made available, through the
NDMP, for projects that mitigate the impact of natural disasters in
Australia.[17]
These projects encompass pre-disaster and post-disaster management
measures and may include:[18]

risk management studies

disaster mitigation strategies

warning systems, and

community awareness and readiness measures.

The NDMP is funded by State, Territory and Commonwealth
Governments, as well as local agencies and contributors from the
private sector, with the Commonwealth Government contributing up to
a third of approved costs.[19]

National Capital Authority

Angus Martyn
Law and Bills Digests Section

The Australian Labor Party s desire to make substantial funding
cutbacks to the National Capital Authority (NCA) was foreshadowed
by Lindsay Tanner in March 2007.[20] Subsequently, the Rudd Government reversed a
decision of the Howard Government to provide funding towards the
redevelopment of Canberra s Constitutional Avenue as part of the
Griffin Legacy .[21] The withdrawal of funding for this project resulted in
a forecast saving of $46.5 million over 2007 2011.[22]

In terms of the 2008 09 Budget, the funding received from the
Commonwealth for NCA departmental items has fallen to $13.657
million as compared to $18.750 million for 2007 08, a reduction of
over 25 per cent.[23]

The Joint Standing Committee on the National Capital and
External Territories is currently holding an inquiry into the role
of the NCA, with a reporting date of 30 June 2008.[24] The NCA was also the subject of
a recent report published by the Australian National Audit
Office.[25]

Australian Federal Police and national security

For information regarding
budget measures relating to the Australian Federal Police and
national security, please refer to the section on security and
policing by Nigel Brew, Foreign Affairs, Defence and Security in
the Budget Review 2008 09.

The Commonwealth
Government announced in the Budget 2008 09 a new framework for
federal financial relations, with a commitment to provide the
foundation for far-reaching economic and social reforms to be
undertaken as part of the Council of Australian Governments (COAG
s) work program.

In March 2008, COAG committed to a comprehensive new economic
reform agenda for Australia, with a particular focus on healthcare,
water resources, regulatory and competition reform and the broader
productivity agenda. The measures are intended to address issues
concerning the productive capacity of the economy, sustainability
of the natural environment and the social inclusion of
disadvantaged people.

The entire framework largely focuses on committed working
arrangements to improve governance and funding between the federal
and state governments. A key decision in this regard was to change
the framework in order to modernise payments for specific
purposes.

The new framework for federal financial relations will commence
on 1 January 2009 (the reform of healthcare funding will commence
on 1 July 2009), with all aspects actively monitored by COAG. A new
Intergovernmental Agreement will be developed to underpin the new
framework and entrench the concept and practice of cooperative
working relationships between governments.

A multi-jurisdictional approach to economic and social
reform

Reform of Consumer Protection Laws

Currently, Australia hosts a costly and untidy web of state,
territory and federal consumer protection laws. In order to
streamline the process, the Productivity Commission (the
Commission) was commissioned to review Australia's consumer policy
framework in December 2006. It published a draft report in December
2007.

Conflicting state and federal consumer protection laws tend to
cost the economy up to $4.5 billion each year. Consumer
protection laws so far are covered by national laws, yet overlapped
by separate and discontinuous state fair trading provisions,
leading to uncertainty and unjustified costs to business and
unfairness for consumers. The simplified rules for example, product
recall laws for unsafe toys and other consumer goods are expected
to prove to be a good cooperative arrangement between federal and
state agencies.

In its final report, the Commission said on 8 May 2008:

though only very broad quantification is
possible, the Commission's reform package could provide a net gain
to the community of between $1.5 billion and $4.5 billion a year.
[27]

While accepting the recommendations, the government observed
that the report provided a unique opportunity to examine
Australia's approach to consumer policy and ensure that the legal
and regulatory framework provides the best outcomes possible for
Australian consumers.[28]

The government will now consider the recommendations and, as
agreed by COAG, respond formally at the end of October 2008.

According to a media report, the state and federal ministers had
reached a broad in-principle agreement to proceed with changes that
have been on the policy agenda for more than a decade, which would
represent a significant breakthrough to make consumer protection
more efficient.[29]

Reform of Corporations Laws

In the background of the sub-prime crisis in international
financial markets, a few Australian companies are exposed to credit
risk. In the final week of April this year, Geelong-based Chartwell
Enterprises collapsed, allegedly owing 80 investors about
$70 million. The demise of Chartwell Enterprises follows the
Opes Prime and LIFT Capital collapses. The Minister for Corporate
Law, Nick Sherry, acknowledged that these crises, and the volatile
international economy, prompted the government to take appropriate
reform measures in the federal corporate regulatory regime.[30]

Accordingly, a greater vigilance regime by federal regulators is
proposed. The key issue around financial disclosure on covered
short selling in the financial markets, and pertinent state and
Commonwealth powers on the matter, is now on the agenda of COAG.
The general disclosure documentation that individual investors rely
on is simply too complicated. As such, work began on simplification
of disclosure documentation, particularly around identifying risk.
Difficulties with state and territory regulation (such as
complexity and overlap regarding financial services), should be
regulated nationally.

In its present form, the Corporations Act is deficient in
respect to covered short selling in the financial markets.[31] The Australian
Security and Investment Commission (ASIC) in some areas of
financial services regulation can not act on matters relating to
the legislations embedded in state laws. The federal government
thus wants to introduce a change in the federal state reform
measures for the purpose of seeking the transfer of some state
powers on financial services into the Commonwealth jurisdiction.
Most of those powers would fall within the remit of ASIC after the
transfer of power.

Budget Allocation

Prior to the Budget 2008 09, the government announced such
reform measures in consumer protection laws and corporations laws
by resolving the differences with the state governments.
Consequently, these initiatives have featured into an expanded COAG
reform agenda, which the government allocating an amount of $25.2
million over five years.[32]

[18]. The Hon. Jim Lloyd MP (Minister for Local
Government, Territories and Roads), Lessons from the past,
lessons for the future, speech given at Annual Conference of
the NSW Floodplains Management Authorities, 23 February 2005.

[31]. In finance, short selling or shorting is the
practice of selling securities the seller does not then own, in the
hope of repurchasing them later at a lower price. This is done in
an attempt to profit from an expected decline in price of a
security, such as a stock or a bond, in contrast to the ordinary
investment practice, where an investor goes long , purchasing a
security in the hope the price will rise. The covered short selling
has thus been a practice of financial transactions between two
independent entities, apparently to hide the transactions from the
disclosure regime.